Law Firm LLC et al., Counsel for defendant-appellant

[Defendant-Appellant] Defendant 1 and 5 others

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Park Yong-ok

2. The costs of the lawsuit are assessed against the defendant.

A. The Plaintiff is a publishing company publishing the authorized curriculum books used at elementary, middle, and high schools, and the Plaintiff also published the 56th and 6th and 6th and 5th and 6th and 2015 elementary school curriculum books (hereinafter “the total of the above textbooks and school curriculum books”) as stated in the “the desired price” column.

B. On May 15, 2015, the Defendant ordered the Plaintiff to adjust the price of each of the curriculum books of this case (attached Form 1), as stated in the "Adjustment Price of Disposition List" column (attached Form 2), on the ground that the price of each of the curriculum books of this case is likely to be determined unfairly due to the reasons under Article 33(2)1 and 3 of the Regulations on Curriculum (hereinafter referred to as the "Rules on Curriculum") (the specific reason for disposition is the same as the stated reasons for disposition in attached Form 2; hereinafter referred to as the "disposition of this case").

C. On June 12, 2015, the Plaintiff dissatisfied with the instant disposition, and filed an objection pursuant to Article 33(4) of the Textbooks Rules with the Defendant, but the Defendant notified the Plaintiff of the examination result that “unacceptancement of all the above objections” was the Defendant on August 11, 2015.

D. The Plaintiff filed an administrative appeal on November 9, 2015, but the Central Administrative Appeals Commission dismissed it on June 14, 2016.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4, purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

The instant disposition is unlawful for the following reasons, and thus should be revoked.

1) In order to issue an order for price adjustment, it is separately recognized that the pertinent curriculum book falls under not only the grounds of each subparagraph of Article 33(2) of the Textbooks Regulations but also the fact that the “price is likely to be determined unfairly due to such circumstances.” Since the price of each curriculum book of this case cannot be deemed to be unfairly determined, there is no reason for disposition of this case.

2) The detailed notice by item (No. 2015-49, No. 2015-49, hereinafter referred to as the “instant notice”) to issue an order to adjust the prices of authorized books does not fully reflect the items necessary for calculating the prices of textbooks, and it cannot be a reasonable price basis, such as discrimination between the publishing company whose actual number of copies is less than the average number of copies and the publishing company whose average number is not less than the average number, and thus, it is unlawful to calculate the adjustment price based thereon.

3) Even if the grounds for disposition are recognized, the adjustment price of each of the instant curriculum books was set excessively lower, and the instant disposition was in violation of law that deviates from and abused discretionary authority.

B. Relevant statutes

[Attachment 3] The entry is as specified in the relevant statutes.

(c) the requirement of the price adjustment order, and whether there is a "probsing to be unfairly decided on the price";

1) Article 29(2) of the Elementary and Secondary Education Act provides that “the scope, writing, authorization, recognition, publication, supply, selection, and price-assessment of curriculum books” shall be prescribed by Presidential Decree. Accordingly, Article 33 of the Curriculum Rules provides that “the price of authorized books and approved books shall be determined by the publishing company which entered into an agreement with the author” under paragraph (1). Notwithstanding paragraph (1) of the same Article, where the price of authorized books and approved books is likely to be determined unreasonably due to any of the following reasons, or where the publishing company collects all the expenses invested in the development of curriculum but fails to reflect them in the price, the Minister of Education may order the adjustment of the price thereof via the Deliberation Committee.” For each of the following reasons, “1. Manufacturing costs who did not actually occur in the course of the development and manufacture of curriculum books are more than 1,000, where the ratio of price-fixing items or expense items to which manufacturers do not actually occur in the process of the development and manufacture of curriculum books is more than 1,000.

2) In light of the language and text, amendment history, legislative intent, etc. of the instant provision, in order to issue an order for price adjustment on the grounds that the price of authorized books and approved books is likely to be determined unfairly due to the reasons set forth in each subparagraph of the instant provision, it should be separately recognized that the relevant curriculum books fall under not only the reasons set forth in each subparagraph of the instant provision, but also there is a concern that the price will be determined unfairly due to such reasons. In such a case, the grounds set forth in each subparagraph of the instant provision are recognized with respect to the curriculum books subject to the order for price adjustment, and the fact that the price of the curriculum books in question is presumed to have been determined unfairly cannot be deemed to have been presumed to have been determined unfairly. Thus, the defendant must prove not only that the grounds set forth in each subparagraph of the instant provision are recognized, but also that the price might be determined unfairly (see Supreme Court Decision 2015Du6020, Jan. 31, 2019).

(1) Whether the price is likely to be determined unfairly or not shall be determined by comprehensively taking into account the excessive benefit of the publishing company of approved books and the increase in the consumer’s economic burden therefrom. It is difficult to readily conclude that the publishing company gains excessive benefit at all times or increases the consumer’s economic burden on the grounds that the grounds prescribed by the subparagraphs of the instant provisions exist.

② It is difficult to see that the correlation between the reasons under each subparagraph of the instant provision and the price actually determined or desired by the publishing company is clear. Despite the existence of the reasons under each subparagraph of the instant provision, the price determined or desired by the publishing company may not be objectively unreasonable from the perspective of objective.

③ As such, the reason and the risk of determining the price of the instant clause are conceptually distinguishable, and the correlation may not be immediately acknowledged, it cannot be deemed that the illegality is naturally presumed on the ground that the grounds of each of the said subparagraphs are recognized.

3) Meanwhile, in full view of the following: (a) publishing companies that issue the textbook and the book is basically the subject of freedom of business activities, and (b) under the inspection and approval system, there are various types of textbooks per subject, and each school has adopted and ordered a single textbook after comparing and reviewing the contents and level of textbooks and the appropriateness of prices; (c) the minimum market economy principle, which is the principle of demand and supply, appears to operate in the textbook market; and (d) the purpose of the Ministry of Education, while adopting the textbook price autonomy system, expanding the proportion of the book among the total textbook books, is to ensure appropriate profit security, thereby inducing publishing companies to produce a high-quality textbook that can reflect various needs of students in the textbook production, and thus, it is reasonable to reasonably recognize that the degree of price intervention by the State is likely to increase in the price of curriculum books, compared with the increase in the price of curriculum books and the increase in the price of curriculum books.

It should be evaluated that the price of the curriculum books determined by the publishing company is an excessive level that cannot be accepted by social norms by comprehensively taking into account the lack of circumstances, the direct and indirect factors affecting the price, the economic environment, the income level of the people, the prices of similar items, etc.

4) The Defendant asserts that the price of each of the curriculum books of this case is likely to be determined unfairly, and based on that reasoning, the Defendant calculated the desired price by appropriating the film output cost, test fee, etc., which cannot be included in the production cost, ② calculated the desired price by applying the estimated number less than the actual number of publication copies and the average number of publication copies; ③ the price increase rate of each of the curriculum books of this case compared to the textbooks and guide books of this case for the last three years is excessively higher than the average price increase rate for the last three years and the total income increase rate per head.

However, each of the above evidence and evidence Nos. 8 and 9 can be seen as comprehensively considering the overall purport of the pleadings, i.e., ① an applicant for inspection and recognition fees, based on Articles 13 and 16 of the Curriculum Rules, which are determined and publicly announced by the Defendant, taking into account the number of pages of the applied book, degree of difficulty in the subject of examination for authorization, and expenses for authorization, etc., and this is not returned. As long as the fee for inspection and recognition is essential expenses for publication of authorized books, it cannot be determined that the mere fact that the publishing company reflected it in the calculation of the desired price of the curriculum books is likely to unfairly determine the price of the textbook. ② The Plaintiff could not know the number or quality of the textbooks or quality of the other publishing company which will pass the time of calculating the desired price. ③ In the case of each of the curriculum of this case, it appears difficult to predict the actual number of copies accurately, ③ It is difficult to find that there is no possibility that the Plaintiff’s new price increase in the curriculum and content of the textbook of this case can not be determined otherwise.

D. Whether the method of calculating the adjustment price prescribed in the public notice of this case is unlawful

1) Article 33(3) of the Textbooks Rules provides that detailed items shall be determined and announced by the Minister of Education, in consideration of material costs, printing, production costs, or production costs (referring to expenses incurred in the development or production of books, records, or electronic works, which are the sum of expenses for printing, reproduction, high-maintenance, and interest on maintenance), general management expenses, other expenses, profits, author's royalties, subsidies for book development, supply fees, etc. In the event that the price adjustment order is issued pursuant to the provisions of this case, the adjusted amount shall be calculated by dividing the "total price" by the "standard number of copies" and the "total price" calculated by multiplying the average number of copies calculated by the average number of copies calculated in the last three years, and the "standard number of copies" provides that the average number of copies calculated by deducting the actual number of copies calculated by applying the average number of copies calculated by the average number of copies calculated by applying the average number of copies calculated by the average number of copies calculated by applying the average number of copies calculated by the average number of copies calculated by the average number of copies applied by the actual number of copies (the average number of copies applied by the average number less than 1.5%).

2) However, in determining the standard number of copies with respect to publishing companies whose actual number of copies is less than the average number of copies, the Defendant grants 3.5% incentives based on average number of copies in the case of the former, but in the case of the standard number of copies that reflects the actual number of copies issued, granting 18.5% incentives based on the actual number of copies issued, etc., without reasonable grounds, it constitutes arbitrary discrimination by publishing companies, and the calculation of adjustment price based on such standard number of copies is illegal (see Supreme Court Decision 2016Du65725, Jan. 31, 2019).

E. Sub-committee

Therefore, the grounds for the disposition of this case are not recognized, and the method of calculating the adjustment price is also illegal, so the disposition of this case should be revoked without examining the remaining arguments of the plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for all reasons and it is decided as per Disposition.

Judges Park Jong-hwan

Judge Lee Professor

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.